The Appellate Division reversed the Supreme Court's Order which marked as withdrawn plaintiff's motion to strike the answer, denied an extension of time for discovery, marked the case off the calendar, and permitted either party, after discovery, to restore the matter to the trial ready calendar by notice of motion application only, and remanded the action.
While a court has broad discretion to supervise disclosure, the Appellate Division found that there was no basis for striking this case from the calendar as a sanction for the parties' failure to timely complete discovery. Dismissal of a pre-note of issue case may be predicated on CPLR 3216 and Uniform Rules for Trial Courts (22 NYCRR 202.27), neither of which applies here.
Trial courts must fashion discovery orders consistent with their obligation to bring discovery to an end as quickly as possible. Marking a case off or striking a case during the discovery phase does not further that obligation because it only encourages inaction by the parties and counsel in completing discovery. Ultimately, marking a case off during discovery leads to unnecessary motion practice, loss of valuable time for discovery, and a waste of judicial resources.
Case: Stewart v. Makhani, NY Slip Op 00577 (1st Dep't January 31, 2017)
Tomorrow's issue: Vacating a default judgment.
